(4) Possession of a controlled substance with intent to distribute, October 10, 1984, Circuit Court of Cook County, Illinois, No. 84-3410;

(5) Unlawful use of weapons, October 10, 1984, Circuit Court of Cook County, Illinois, No. 84-3838.

The government also notified defendant of a grand larceny conviction in Jackson, Mississippi on June 10, 1986, but at the hearing advised the court that it would not rely on this conviction.

At the outset of the hearing, the defendant denied he was the person convicted of the 1968 and 1973 armed robbery convictions. He admitted he was the person charged in the 1976 armed robbery conviction, but contended that his attorney and the trial judge entered a plea of guilty for him in his absence. Defendant concedes that he was the person convicted and sentenced for the two offenses committed in 1984.

As to the three armed robberies, the government called a treasury agent who testified that he obtained certified copies of the three conviction orders. He explained that he obtained the fingerprint records of the person confined as a result of these convictions and caused them to be compared with the known fingerprints of defendant Garrett. The government then introduced a fingerprint analysis which shows the fingerprints of the person confined as a result of the convictions to be the same as defendant's fingerprints taken from the defendant on April 9, 1988. It also appears from these records that defendant has from time to time used the names James E. Garrette and George Bey. This evidence was sufficient to show defendant to be the person convicted of the 1968, 1973, and 1976 offenses.

Defendant testified on his own behalf that the plea of guilty shown on the record of the 1976 conviction was entered in his absence by his attorney and the trial judge. He further stated that he served a period of incarceration on this sentence and was paroled. Defendant, when he testified, did not contest that he was the person convicted of the 1968 and 1973 offenses.

Defendant did not support his assertion that the 1976 conviction was obtained by the misconduct of his attorney and the trial judge. He did not introduce a transcript of the proceedings or call his attorney -- who is a well known practitioner in this court. Defendant's testimony is not credible and does not overcome the proof presented by the record of convictions received in evidence.

Accordingly, the court finds that defendant is the person named in each of the convictions presented by the government and rejects the contention that the 1976 conviction was obtained in defendant's absence.

A. 18 U.S.C. § 924(e)

Section 924(e), Title 18, United States Code, allows the state to seek an enhanced penalty for violation of 18 U.S.C. § 922(g), felon in possession of a firearm, if the defendant has three prior convictions for either a violent felony or a serious drug offense. See generally United States v. Lowe, 860 F.2d 1370 (7th Cir. 1988), cert. denied, 490 U.S. 1005, 1989 U.S. LEXIS 1696, 104 L. Ed. 2d 155, 109 S. Ct. 1639 (1989). Armed robbery is a violent felony, within the meaning of 18 U.S.C. § 924(e)(2)(B)(i). United States v. Jackson, 835 F.2d 1195, 1197 (7th Cir. 1987), cert. denied, 485 U.S. 969, 99 L. Ed. 2d 442, 108 S. Ct. 1244 (1988). The government seeks this enhancement. Since Mr. Garrett has three prior convictions for armed robbery, his sentence on this Count is enhanced from a maximum of five years incarceration to a minimum of 15 years, without possibility of parole.

In April, 1988, Mr. Garrett drove to an alley in Chicago, parked, and approached a woman who the police believed was a prostitute. Garrett and the woman walked into the alley toward his car, where they were immediately followed and approached by two Chicago police officers. One officer shined his flashlight into the front seat where he saw a torn brown bag containing a number of packets known as "snow seals." The officer removed the bag and discovered a.25 caliber pistol. The police recovered only 3.5 grams of cocaine from the packets. This is a small amount, and but for the fact that the cocaine was divided into a number of packets, would not give rise to an inference of any intent to distribute. They arrested Mr. Garrett and released the woman. She did not testify at trial.
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A defendant is a career offender if (1) the offender was at least eighteen years old at the time of the instant offense, (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense, and (3) the offender has at least two prior felony convictions of either a crime of violence or a controlled substance offense. If the offense level for a career criminal from the table below is greater than the offense level otherwise applicable, the offense level from the table below shall apply. A career offender's criminal history category in every case shall be Category VI.

Offense Statutory Minimum Offense Level
(A) Life 37
(B) 25 years or more 34
(C) 20 years or more, but less than 25 years 32
(D) 15 years or more, but less than 20 years 29
(E) 10 years or more, but less than 15 years 24
(F) 5 years or more, but less than 10 years 17
(G) More than 1 year, but less than 5 years 12

Under this definition, Mr. Garrett is a career offender: he was at least eighteen years old; the instant offense is a controlled substance felony; and he has at least two prior convictions for a crime of violence, since armed robbery is a crime of violence under the Guidelines. See § 4B1.2 Note 1.

The Guidelines sentence for a Category VI defendant with an offense level of 37 is 30 years to life. On top of that, Mr. Garrett would receive an additional five years on Count Two, since that sentence must run consecutive to any other term imposed. 18 U.S.C. § 924(c). Mr. Garrett, under the Guidelines, will serve a minimum of 35 years in prison, without parole.

CONSTITUTIONAL CLAIMS

The gap between the statutory and Guidelines minimum is 15 years. Mr. Garrett attacks the Guidelines sentence as a violation of the double jeopardy clause and as cruel and unusual punishment.

A. Double Jeopardy

The Double Jeopardy Clause prevents multiple punishment for the same offense. North Carolina v. Pearce, 395 U.S. 711, 23 L. Ed. 2d 656, 89 S. Ct. 2072 (1969). Mr. Garrett seizes on this principle and argues that his sentence under the Guidelines constitutes impermissible multiple punishment. It does not.

The centerpiece to his argument is that the Guidelines double count his criminal history. According to Mr. Garrett, his criminal history subjects him first to a statutory enhancement, by increasing the penalty from a five year maximum to a 15 year minimum (18 U.S.C. § 924(e)), and second to a Guidelines enhancement, by rendering him a Career Offender with a Category VI criminal history score. In addition, Mr. Garrett points out that the statutory enhancement, which creates the offense statutory maximum of life imprisonment, is also what catapults him to an offense level of 37. That offense level, combined with his elevated criminal history Category, translates into a mandatory minimum 30 years, twice the statutory minimum. From this, Mr. Garrett concludes that the Guidelines count his criminal history twice, thereby subjecting him to multiple punishment for the same offense.

He is mistaken. The argument has intuitive appeal, but ultimately it misreads the Guidelines. The statutory enhancement in 18 U.S.C. § 924(e) creates a sentencing range of 15 years to life imprisonment. This enhancement, however, is, in effect, enhanced again by 28 U.S.C. § 994(h) -- a provision which Mr. Garrett fails to consider. 28 U.S.C. § 994(h) instructs the Sentencing Commission to draft guidelines which incarcerate certain habitual offenders "at or near the maximum term authorized" by statute. Mr. Garrett, by virtue of his criminal history, is such an offender. 28 U.S.C. § 994(h)(1). Section 4B1.1 of the Guidelines in turn implements § 994(h).

The upshot is this: the first statutory enhancement in 18 U.S.C. § 924(e) raises the penalty to 15 years to life. The second statutory "enhancement" in 28 U.S.C. § 994(h) eliminates the 15 year minimum and leaves only life imprisonment as the "maximum term authorized." The Guidelines implement these statutes by calling potentially for a life sentence for someone in Mr. Garrett's position. The Guidelines, in other words, track the statutory scheme and therefore do not impose a sentence beyond that called for by statute.

The Supreme Court held in Solem that a life sentence without possibility of parole, based on a South Dakota recidivist statute, constituted cruel and unusual punishment when imposed on a defendant convicted of passing a "no account" check for $ 100, where his prior six felony convictions were for "relatively minor criminal conduct." Id. at 279, 280, 284, 303.

The facts here, by contrast, seem to bear little resemblance to those in Solem : both the offense and Mr. Garrett's criminal history are substantially more serious, and his sentence under the Guidelines is potentially to a term of years. One Court of Appeals has in fact suggested that any sentence short of either the death penalty or life imprisonment without possibility of parole cannot implicate Solem. United States v. Rhodes, 779 F.2d 1019, 1028 (4th Cir. 1985), cert. denied, 476 U.S. 1182, 91 L. Ed. 2d 545, 106 S. Ct. 2916 (1986).

Fortunately, the court need not decide whether a 35 year term in this case constitutes cruel and unusual punishment. Consistent with the time-honored admonition to avoid constitutional issues, the court expresses no opinion on the question since, for the reasons given immediately below, the court will depart from the Guidelines range.
*fn4"

This section lists a number of grounds for departure. The list is not intended to be comprehensive, however, and "the court may depart from the guidelines, even though the reason for departure is listed elsewhere in the guidelines . . ., if the court determines that, in light of unusual circumstances, the guideline level attached to that factor is inadequate." Id.

The basis for departure in this case appears at, and is expressly authorized by, § 4A1.3, which provides in part:

If reliable information indicates that the criminal history category does not adequately reflect the seriousness of the defendant's past conduct or the likelihood that the defendant will commit other crimes, the court may consider imposing a sentence departing from the otherwise applicable guideline range. . . .

(Emphasis added). And the commentary to this section similarly provides:

This policy statement recognizes that the criminal history score is unlikely to take into account all the variations in the seriousness of criminal history that may occur. . . . This policy statement authorizes the consideration of a departure from the guidelines in the limited circumstances where reliable information indicates that the criminal history category does not adequately reflect the seriousness of the defendant's criminal history or likelihood of recidivism. . . .

(Emphasis added).

It is the likelihood of recidivism -- or more precisely, the relative improbability of recidivism -- that justifies a departure in this case. Mr. Garrett, as noted, is 42. Under the Guidelines, he would die in prison. Even a twenty year sentence will mean incarceration nearly equal to his life expectancy. And twenty years in prison followed by six years of supervised release means that Mr. Garrett will spend out his life either in custody, or in supervision. He will never be a free man. Violent crime, the sort of conduct which earned Mr. Garrett enhancements under § 924(e) and § 994(h), is rare among those over 60. FBI, Crime in the United States: Uniform Crime Reports, 174-75, 175-77 (1987). In fact, after one's twenties, criminal activity in general declines steadily. Id. As a rule in this society, the risk of criminal activity is smallest for those with the fewest years to live. "A civilized society locks up such people [as Mr. Garrett] until age makes them harmless but it does not keep them in prison until they die." United States v. Jackson, 835 F.2d at 1200 (Posner, J., concurring).

The Guidelines sentence in this case is all the more extreme when juxtaposed with the facts of the instant offense. Granted, Mr. Garrett had no right to be in possession of a gun, and he indeed had cocaine. But certainly some thought must be given to just what it was Mr. Garrett did in this case. Compare United States v. Gourley, 835 F.2d 249 (10th Cir. 1987) (life sentence without possibility of parole for felon in possession of firearm who tried to kill police officer by holding gun to officer's throat and pulling trigger). Mr. Garrett, by contrast, ran afoul of the law when he attempted to pick up a prostitute. It simply cannot be said that the law sees no distinction between these cases. Accordingly, the Guidelines mandatory minimums to be considered at the time of sentencing will be a minimum of 15 years custody without parole on Count One, a minimum of five years consecutive custody on Count Two, and a maximum of 30 years custody on Count Three with a minimum six years supervised release.

IT IS THEREFORE ORDERED as follows:

(1) Defendant's post-trial motions, including a motion for a new trial and judgment of acquittal, are denied.

(2) The sentencing ranges to be applied are as stated in this order.

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